Asok Kumar Ganguly, Soumitra Pal ( 1 ) THIS writ petition has been filed challenging an order dated 10. 12. 2004 passed by the West Bengal Administrative Tribunal (hereinafter referred to as the said Tribunal ). ( 2 ) IN the impugned order of the Tribunal the Tribunal has dismissed the original application No. 26 of 2003 filed by the petitioner. By the said original application the petitioner challenged the order of dismissal dated 18. 06. 2001 passed against him by the Superintendent of Police, Darjeeling on the basis of departmental proceedings against him. ( 3 ) THE departmental proceeding was initiated against the petitioner on the following charges. 'article OF CHARGE NO. I while you were attached to Jalapahar T. O. P. under Sadar P. S. reported sick on 19. 03. 2000 and left you unit without any intimation or permission from competent authority and continued to remain absent unauthorisedly till date. A warning notice vide Memo No. 1752/r. O. dated 24. 04. 2000. was issued to you recorded home address with a direction to resume duty within 24 hours from the date of receipt, but the same received back undeliver and are thereby guilty of negligence of duty. You are hereby directed to submit in writing within seven days from the date of receipt of this charge and statement of allegation whether you plead guilty to the charges levelled against you or prefer an open enquiry. Your reply should reach to Shri C. K. Pradhan, D/o III MRK who has been appointed as E. O. in this Depttl. Proceeding. " ( 4 ) IT, therefore, appears that the petitioner, according to the charge against him, remained absent from duty from 19th March, 2000 till 21st June, 2000. This was for a period about three months. ( 5 ) IN the charge itself it has been stated that on 19th March, 2000 the petitioner reported sick. In the statement of allegation also it, has been recorded that the petitioner reported sick on 19th March, 2000 and did not resume duty till the charge was issued to him on 21st June, 2000. ( 6 ) THE Enquiry Officer submitted a scanty two-page report in the report the Enquiry Officer found that the petitioner reported sick on 19th March, 2000 while he was attached to Jalapahar T. O. P. under Sadar P. S. District. ( 6 ) THE Enquiry Officer submitted a scanty two-page report in the report the Enquiry Officer found that the petitioner reported sick on 19th March, 2000 while he was attached to Jalapahar T. O. P. under Sadar P. S. District. Darjeeling and without any intimation he left the place of posting on 27th march, 2000. An absent report against him was submitted. Thereafter, the disciplinary action was taken against him and a warning notice dated 24. 04. 2000 was sent to him. But the same was returned as 'unserved'. Ultimately, a departmental proceeding was initiated against him. ( 7 ) THE petitioner pleaded guilty to the charges and submitted that he was advised medical rest on and from 19th March, 2000 and thereafter he remained absent. But the petitioner also stated that during the period in question he underwent medical treatment of his right leg which suffered injury. But, he could not produced any medical report. Then the enquiry was immediately closed as the petitioner pleaded guilty to the charge of remaining absent for the period mentioned in the charge-sheet. ( 8 ) THE Enquiry Officer in his report closed the enquiry and gave as alleged finding that the petitioner is liable for punishment. It may be pointed out that the Enquiry Officer is not supposed to recommend punishment. ( 9 ) IN the report filed by the Enquiry Officer he is expected to find out whether the charges have been proved or not. From the record itself it appears that the Enquiry Officer recommended punishment of the petitioner. However, on the basis of the said enquiry report a second show-cause notice was issued to the petitioner by the Superintendent of Police, Darjeeling. In the second show-cause notice several materials were referred to which did not form part of the charge-sheet or the enquiry report. The Superintendent of police. Darjeeling referred to the past record of the petitioner from which it appears that the petitioner availed of leave without pay and thereafter certain procedures were adopted against him in which he received minor and major punishment. On the basis of some materials, which are part of the charge-sheet, the Superintendent of Police, Darjeeling formed an opinion that the petitioner is not a fit person to be retained in service and he was asked to show-cause why he should not be dismissed/discharged from service. On the basis of some materials, which are part of the charge-sheet, the Superintendent of Police, Darjeeling formed an opinion that the petitioner is not a fit person to be retained in service and he was asked to show-cause why he should not be dismissed/discharged from service. ( 10 ) IN answerto the said show-cause the petitioner also gave a reply requesting the authorities to take a lenient view in the matter considering his physical ailment. Ultimately, an order of dismissal was passed on 18th June, 2001 in which also the act of denying the charge was taken into consideration various factors relating to his past record and availing of leave as also record that the petitioner in the past suffered major and minor punishment were taking into consideration. ( 11 ) WHEN the matter was argued before the Tribunal after recording the submissions which have been recorded hereinabove considered the ratio of two judgments. We shall consider the judgments of the learned Single judges in the case of Nirode Roy v. D. I. G. and Others reported in 1987 (1)CHN 457 and the other was a decision of the Supreme Court in the case of state of Uttar Pradesh v. Ashok Kumar Singh reported in AIR 1996 SC 736 . ( 12 ) CONSIDERING all those facts and also considering the fact that in the past several major and minor punishments were suffered by the petitioner, the Tribunal upheld the order of punishment of didmissal against the petitioner. ( 13 ) IN the facts of the case the question which arises is whether for overstaying or for unauthorised absence for a period of three months the order of dismissal passed against the petitioner can be sustained when admittedly it appears from the record that the dismissal order against the petitioner was passed not only for the charges levelled against him in the charge-sheet but for allegations for which he was not charged with. Both the second show-cause notice and the dismissal order are based on several allegations which are not to be found in the charge-sheet. For those allegations, the petitioner had already suffered and on those allegations, the petitioner cannot be punished again. That would be unfair. It is no doubt true that being a member of Police Force the petitioner is a member of disciplined force. For those allegations, the petitioner had already suffered and on those allegations, the petitioner cannot be punished again. That would be unfair. It is no doubt true that being a member of Police Force the petitioner is a member of disciplined force. It is equally true that since he is a member of a disciplined force, the petitioner should show utmost devotion to duty and must act in a disciplined way. There can be no doubt that remaining absent in an unauthorised manner, is an act of misconduct and since the petitioner has not tried to defend himself but has pleaded guilty that charge of unauthorised absence is proved against him. But the petitioner committed mistake but the only question to be considered by the Court is whether forthe misconduct of remaining absent for about three months the petitioner should lose his job. In this connection the Tribunal has relied on the decision of the Supreme Court in the State of uttar Pradesh v. Ashok Kumar Singh reported in AIR 1996 SC 736 . ( 14 ) THE fact of that case was slightly different. The petitioner in that case remained absent from duty on several occasions and which are mentioned in the charge-sheet. It may also be mentioned that the total absence of the petitioner in that case was for 251 days during 1981-82 and then 93 days in 1982 while the petitioner was in that case, posted in two different Police Stations. So from 1981 to 1982 the petitioner was virtually absent for the entire year. On those facts the said findings of the Supreme court that the absence from duty does constitute a charge of misconduct and the contrary view cannot be sustained. ( 15 ) IN the instant case the facts are totally different. Here the petitioner admittedly reported sick on 19th March, 2000 and proceeding against him was initiated in June, 2000 which is within three months. ( 16 ) IT is obviously true that when the petitioner is to be punished as has been done in the instant case, specially when he is punished for dismissal from service, the respondent authorities must confine their consideration on that basis of facts alleged in the charge-sheet. ( 17 ) IN the instant case it is clear as the disciplinary authority has travelled beyond the charge. ( 17 ) IN the instant case it is clear as the disciplinary authority has travelled beyond the charge. Both at the stage of second show-cause notice and also at the stage of dismissal, the past conduct of the petitioner has been taken into account for imposing the penalty of dismissal. It is clear that for the past conduct the petitioner has been punished already and thereafter he has been punished again. It goes without saying that when a person is dismissed from service the person so dismissed has a substantial stake in the matter. The person loses his job and also loses the means of earning his livelihood. So when a person loses his livelihood, Courts are entitled to insist to ensure that such loss of livelihood can be based only on a procedure which is just, fair and reasonable. This is the clear mandate of the Apex court in D. K. Jadav v. J. M. A. Industries, reported in 1993 (3) SCC 259 . ( 18 ) A reasonable and fair procedure would demand that the guilt of the delinquent employee should be judged on the basis of charges levelled against him and not on the basis of materials which are not part of the charges. Unfortunately, this has been done in the instant case. Therefore, the action of the disciplinary authority in the second show-cause notice as also in the final order of punishment was not passed on the basis of a fair procedure. ( 19 ) THIS vital aspect of the case was not noticed by the Tribunal and, as such, the Tribunal fell into an error. ( 20 ) APART from that this Court, in view of the recent judgment of the supreme Court in the case of Dev Singh v. Punjab Tourism Development corpn. Ltd. and Anr. reported in 2003 (8) SCC 9 it is clear that a Court should not normally substitute its own conclusion on the penalty imposed unless the penalty imposed is so disproportionate as to shock the conscience of the Court. Here the penalty of dismissal solely on the basis of the chrge in the charge-sheet is shockingly disproportionate especially when the respondents knew that the petitioner was sick. Here the penalty of dismissal solely on the basis of the chrge in the charge-sheet is shockingly disproportionate especially when the respondents knew that the petitioner was sick. ( 21 ) IN another case the Supreme Court has also explained the doctrine of proportionality and held that in orderto maintain a balance the Court can find out whether the choice made by the administrative authority infringes the rights of the parties excessively or not. Observation to that effect made in Paragraph 28 in the judgment of Om Kumar v. Union of India and Anr. reported in 2001 (2) SCC 386 are set out :-"by 'proportionality', we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by legislature or the administrator so asto achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the legislature and the administrative authority maintain a proper balance between the adverse effects which the legislation or the administrative order may neve on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve'. The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the Court. That is what is meant by proportionality. " ( 22 ) A learned Single Judge of this Court in the case of Nirode Roy v. D. I. G. and Ors. reported in 1987 (1) CHN 457 has analysed the provision of police Regulation of Bengal in the context of departmental proceeding and imposing of penalty in a case of unauthorised absence of a person. The learned Single Judge referred to Regulation 856 of P. R. B. Regulation 856 clarifies the offences into two types (I) offences connoting moral turpitude and (2) minor offences. It is not in dispute that the said Regulations are also applicable here. ( 23 ) THE learned Single Judge found that the offences connoting moral turpitude are major offences and the learned Judge further held that the misconduct of remaining absent from duty does fall under the category of offence connoting moral turpitude. It is not in dispute that the said Regulations are also applicable here. ( 23 ) THE learned Single Judge found that the offences connoting moral turpitude are major offences and the learned Judge further held that the misconduct of remaining absent from duty does fall under the category of offence connoting moral turpitude. Therefore, it is not a major offences under p. R. B. This ratio squarely applies to the facts of this case. So for an act of indiscipline which is not a major offence under the regulations major punishment cannot be imposed. Major Penalty and minor penalty have been dealt with differently in P. R. B. Since the petitioner is guided by Regulations 856 and 857 we are bound to follow the aforesaid classification of offences under P. R. B. ( 24 ) FOLLOWING that ratio, this Court cannot come to the conclusion that in the instant case the alleged misconduct of remaining absent for the period as stated in the charge-sheet amount to an offence connoting moral turpitude. ( 25 ) THAT this Court, therefore, approves the ratio in the case of Nirode roy v. D. I. G. and Ors. , and holds that the punishment of dismissal from service should not have been imposed in the facts and circumstances of this case by the respondent. ( 26 ) THE Tribunal also failed into an error by not properly appreciating the true import and purport of Regulations 856 and 857. ( 27 ) FOR the reasons aforesaid this Court quashes the order of dismissal and the second show-cause notice issued against the petitioner as also the order of the Tribunal. ( 28 ) THE respondents are directed to reinstate the writ petitioner in service with effect from 1st January, 2006. On such reinstatement he should be placed in the same post of which he would be entitled, but for the order of dismissal. Forthe period during which the petitioner was unemployed because of dismissal and till his reinstatement this Court feels that the requirement of ends of justice would be sufficiently met if the petitioner is given 50% of the back wages. But the seniority and continuity of the petitioner in service will be maintained. The back wages mentioned above should be paid to the petitioner within three nonths from the date of his reinstatement. But the seniority and continuity of the petitioner in service will be maintained. The back wages mentioned above should be paid to the petitioner within three nonths from the date of his reinstatement. ( 29 ) THIS Court also makes it clear that after the reinstatement it is open to the respondent, to impose any minor penalty prescribed in P. R. B. ( 30 ) SINCE the dismissal is quashed the appellate order affirming the same is also quashed as it has no legs to stand upon. The writ petition is allowed to the extent indicated above. No order as to costs.